THE EMPLOYEES LISTED
IN ANNEXURE “A” ...........Second
to Further Respondents

Heard: 23 November
2012

Delivered: 14 May 2013

Summary: Issue whether
applicant’s application for a punitive costs order against the
respondents should be granted pursuant
to this court issuing an
interim order interdicting the respondents from committing acts of
violence, intimidation and damage to
property.

Protected strike, the
union had given the employer the requisite 48 hours section 64(1)(a)
statutory notice. Before the strike commenced
the employer gave the
union a copy of the proposed picketing rules and requested the union
to agree to them. But a representative
of the union acknowledged
receipt thereof as these were subject to further negotiations between
the parties before there could
be final agreement between the
parties.

On the first, fourth,
fifth and sixth day before and after interim order obtained and
served on respondents, there were serious
incidents of violence,
threats of violence, serious damage to property by the picketing
respondents – on buses transporting
applicant’s
employees, employees of a temporary employment agency, vehicle
belonging to applicant’s engineer. The road
leading to
applicant’s factory blocked by respondents using burning tyres,
concrete drain pipes, overturned temporary toilets,
a burning
telephone pole put across the road. Police pelted with stones, forced
to fire off a few rounds of rubber bullets.

Court cannot overlook
serious acts of violence because the strike has become settled, the
picketing rules agreed, costs order would
deter poor employees from
approaching the court. The applicant was unjustly compelled to launch
the urgent application due to the
conduct of the respondents. A
punitive cost order granted to mark the court’s disapproval.

[1] This is the return
date of the rule nisi issued by Boqwana AJ on the 23 October
2012. On the return date, 23 November 2012, the rule nisi was
discharged and the applicant sought an order for costs against the
respondents.

[2] The terms of the rule
nisi were as follows:

‘1. The terms
of this order shall operate with immediate effect as interim order
pending the return date on 23 November 2012, by
agreement that:

1.1. The Second to Further Respondents
are interdicted from participating in any unlawful conduct at the
Applicant’s premises
pending the outcome of a referral by the
applicant in terms of which the Commission for Conciliation,
Mediation and Arbitration
(“the CCMA”) is required to
establish picketing rules in terms of section 69(5) of the LRA

1.2. Interdicting and restraining the
Second to Further Respondents from in any way interfering with, or
obstructing, the normal
operation of the applicant, including, but
not limited to access and egress to the applicant’s premises
and/or interfering
with any other aspect of the applicant’s
business at Jordan Valley Bapsfontein.

1.3. Restraining the Second to Further
Respondents from intimidating, threatening or interfering with any
employee of the Applicant,
including any employee of a temporary
employment service contracted by the applicant, who wishes to tender
his services.

1.4. Restraining the Second to Further
Respondents from intimidating, threatening or interfering with any
supplier of the Applicant
who wishes to comply with its contractual
obligations to the Applicant.

1.5. Directing that the First
Respondent ensures that the Second to Further Respondents comply with
the picketing agreement “NW2”
to the founding affidavit,
pending the outcome of the referral by the Applicant in terms of
which the Commission for Conciliation,
Mediation and Arbitration “the
CCMA”) is required to establish picketing rules in terms of
section 69(5) of the LRA.

1.6. The Second to Further Respondents
are to picket only in the demarcated area, as marked “X”.

1.7. The South African Police Services
is to give effect to the terms of this order.

1.8. The service of this order is to
be effected by the person nominated by the Applicant as follows:

1.8.2. Upon the Second to Further
Respondents by the terms being read by a person nominated by the
Applicant to so many of them
as are present at the premises at the
time and displaying a copy of the order in a conspicuous position at
the entrance to the
applicant’s premises, provided that if any
of the Second to Further Respondents request a copy of the order, the
applicant
shall make such copy available to him or her. The shop
stewards are to read the order to the Second to Further Respondents.

1.9 The costs of this application are
reserved for the return day.’

Background

[2] The business of the
applicant is located in rural farmland in Bapsfontein, Gauteng
Province. On its premises, the applicant
has facilities to receive,
prepare, package and distribute the pre-packaged fruit salad to
Woolworths and Marks and Spencer in
the UK.

[3] The approach road to
the applicant’s premises is a gravel/sand road which is off a
tarred regional road. The entrance
to the premises is through one
main entrance controlled by a boom gate, operated by applicant’s
personnel. The area around
the applicant’s premises is rural
farmland on which are private vegetable farms.

Collective
bargaining relationship

[4] The Food and Allied
Workers Union (‘FAWU’) had organised and represented the
employees of the applicant for a number
of years. A Recognition
Agreement had been concluded between the applicant and FAWU in about
2001. In addition to the conclusion
of the Recognition Agreement, an
Agency Shop Agreement was also concluded in favour of FAWU.

[5] However, around May
2010, the applicant received correspondence from the Labour Equity
General Workers Union of South Africa
(“LEWUSA”), a Union
registered in accordance with the LRA, 66 of 1995, with its principal
place of business at 57 Apthil
Avenue, Kitchener Building, 1st
Floor, Room 10b, Benoni.

[6] LEWUSA indicated that
it sought to exercise certain organisational rights within the
workplace. No verification process had
been conducted at that time.
That only began on or about September 2010.

[7] Pursuant to the
verification process, it was established that FAWU had lost its
majority status, and, subsequent thereto, the
Agency Shop and
Recognition Agreements were cancelled.

[8] On 4 April 2011, a
Recognition Agreement was concluded with LEWUSA. The current dispute
revolves around wage negotiations.

[9] The Second to Further
Respondents are employees of the applicant and members of LEWUSA. A
list of the individual members is
found in annexure “A”.

[10] It is common cause
between the parties that wage negotiations had commenced at the
beginning of October and collapsed on the
15 October 2012 as the
applicant was unable to agree to the wage demands of the respondents.

[11] On the 16 October
2012, the Union gave the applicant the 48 hours section 64(1)(b)
statutory notice in terms of the LRA of
its intention to embark on
strike action from 17h00 on Thursday 18 October 2012.

[12] On the same date, ie
16 October, the applicant/employer handed to Mr Joshua Mokoena a copy
of the proposed picketing rules
and requested the first respondent to
agree thereto as contained in the agreement. Mr Mokoena only
acknowledged receipt thereof
as these were, he correctly contends,
subject to negotiations between the parties before there could be
final agreement.

[13] So when the strike
began, on Thursday 18 October 2012, it was a protected strike in
terms of section 67(1) of the LRA.

[14] The applicant, in
his founding affidavit, enumerates certain incidents of violence,
threats of violence and intimidation directed
at non-striking
employees, employees of a temporary employment service, damage to
property and objects like rocks, telephone poles,
portable toilets.
These incidents were captured on closed circuit video camera and also
on hand held video camera. The footage
and photographs developed were
annexures to the founding affidavit.

[15] On Friday 19 October
2012, at about 05h20, the applicant’s Human Resources Manager,
Ms Melanie Parsons, was requested
by Juan Herholdt, the Engineering
Manager of the applicant, to contact the local police station at
Welbekend, as the individual
respondents had placed logs and branches
across the road prohibiting access to the applicant’s premises.

[16] At about 05h30,
Parsons was informed by the labour broker that their taxis had been
prohibited from approaching the premises
for the purpose of bringing
replacement labour on site.

[17] At about 06h00, a
bus with replacement workers arrived on the neighbouring farm’s
road to bring replacement labour and
was attacked by the individual
respondents. The applicant’s security company, Juan Herholdt
and Parsons managed to arrange
to arrange a safe passage of the
replacement onto the applicant’s premises. At this time, there
were no marshals or shop
stewards present. When Parsons contacted
Lucky Suzaki of the first respondent and requested his assistance, he
failed to provide
any support.

[18] At about 07h00,
members of the South African Police Services arrived at the
applicant’s premises and a number of the
respondents threw
stones at them.

[19] After the police
arrived the applicant’s general manager Black was escorted onto
the premises. In response, thereto the
respondents lit a tyre and
barricaded the entrance with a concrete drain pipe with the result
that about 150 staff members were
unable to gain access to the site
until the public order police arrived and escorted them onto the
premises.

[20] Mr Wilkes arrived at
the entrance at about 10h00 and was escorted by the public order
police onto the premises. Whilst being
escorted onto the premises,
the respondents became more violent which necessitated the police to
fire off a few rounds of rubber
bullets. It was after then that
vehicles could enter and exit the applicant’s premises.

[21] Throughout this
time, the respondents refused to stay in the demarcated zone and the
police did not force them back into it
as they were of the view that
that would exacerbate the situation. So much for applicant’s
version of the events that occurred
on Friday 19 October 2012.

[22] It is common cause
that on Saturday 20 and Sunday 21, the Second to Further Respondents
did not picket at the applicant’s
premises at all that
week-end. On Saturday, the factory was open between 07h00 and 18h00
and on Sunday between 06h00 and 18h00.

Alleged unlawful
conduct on 22 October 2012

[23] On Monday 22 October
2012, some of the respondents arrived at the entrance to applicant’s
premises at 06h00 and began
“toy toying’, brandishing
sticks and singing battle songs. About half an hour later, buses
carrying some of the striking
workers also arrived. They blocked the
entrance to applicant’s premises by setting alight a telephone
pole. The removal of
the telephone pole by the respondents has
resulted in the fixed line connection to the applicant’s
premises being damaged.

[24] The police at
Welbekend Police Station were called by applicant’s Engineering
Manager, Juan Herholdt. Public order police
arrived but were unable
to ensure the safe passage of replacement labour and of several of
the applicant’s administration
staff. As a result, production
could not commence on Monday 22 October 2012 and at 14h00, the
applicant’s premises were closed
due to the inability of the
police to ensure the safety of the applicant’s employees.

[25] Various discussions
were held with the police and the latter advised Black to obtain a
court order interdicting the striking
respondents from blockading the
premises as the police could not intervene without a court order.

[26] At about 15h40 on
Monday 22 October 2012, a letter was addressed to the Station
Commander, Mr Nkambula of Welbekend by the
applicant’s
attorneys informing him that the police have an obligation to assist
the applicant to maintain law and order
at their premises where
picketing by striking employees was accompanied by acts of
criminality; that the police did not need a
court interdict before
acting. A judgment of this court in which La Grange J had said: “The
police do not need a court order
to intervene when faced with conduct
which is prima facie criminal in nature, simply because that
conduct takes place in the context of industrial action”.
Paragraph 17 SA Post Office Ltd v TAS Appointment and Management
Services CC and Others[2012] 6 BLLR 621 (LC) was attached to the
letter.

[27] In his answering
affidavit deposed to by Mr Jan Mathe, an organiser of the First
Respondent, he states that on the Friday 19
October 2012 when the
employer sent in replacement labour, it also sent in a private
security company whose officers started brandishing
teasers, guns and
dogs. The employees carried sticks to protect or defend themselves.

[28] The respondent also
states that he viewed the video footage and he did not see any acts
of violence by the picketing workers
and that, in any event, the
video recorder could not film events that were happening at the
entrance to the applicant’s premises
as the road curves before
the entrance and therefore it is impossible to see beyond that curve
or bend. Therefore their description
of the events that occurred was
at best circumstantial and should be treated with circumspection.

[29] Furthermore, the
first respondent did engage in court with the applicant on the 23
October 2012 to settle the terms of the
interim order that was made
an order of court. But there had been no need for the applicant to
have rushed to court when it could
have requested the CCMA to help
conclude and settle the terms of the picket rules. The respondents
were at all times willing to
go that route. But on the 19 October
2012 Mokoena could not sign the agreement on the picket rules without
consulting his members
hence he signed only acknowledgement of
receipt of a copy of those rules. Sukazi had prior Union commitments
which he had to attend.

[30] In all the
circumstances, therefore, it was an abuse of the court processes for
the applicant to approach this court for an
interdict and ask for
costs.

[31] The applicant’s
main contention is that it was forced to apply for an interdict
against the respondents because of the
violence, intimidation of
non-striking employees, obstruction of the entrance in and out of
their premises by the respondents.

[32] In terms of section
64(1)(ii):

‘(1) Every
employee has the right to strike and every employer has recourse to
lock-out if -

(b) in the case of a proposed strike,
at least 48 hours’ notice was given of the commencement of the
strike, in writing, has
been given to the employer...’

[32] The first respondent
had given the employer the requisite statutory notice. Accordingly,
the Second to Further Respondents
had complied with the statutory
requirement. The strike was therefore legal and protected in terms of
the Act.

[33]The
issue for the court to resolve is whether the applicant is entitled
to its costs for applying for an interdict when the cause
of the
strike was settled by the parties under the auspices of a CCMA
commissioner, and a settlement agreement was signed by the
parties on
the 24 October 2012 and the employees agreed to return to work on
Monday 29 October 2012.

[34] In terms of costs
section 162 states: “(1) The Labour Court may make an order for
the payment of costs, according to
the requirements of the law and
fairness. (2) When deciding whether or not to order the payment of
costs, the Labour Court may
take into account – (b) the conduct
of the parties – (i) in proceeding with or defending the matter
before the Court;
and (ii) during the proceedings before the Court.”

[35]
The issue of costs in a comparative situation to the present case was
considered by Van Niekerk J in Tsogo
Sun Casinos (Pty) Ltd t/a Montecasino v Future of SA Workers Union
and Others.1In
that case the employees were engaged in a protected strike.

‘[4] In the
founding papers, the applicant averred that the individual
respondents were acting in breach of the picketing agreement
by
engaging in a variety of criminal acts,” he described the said
acts and continued: “The applicant’s attempts
to resolve
the issue of strike related violence by agreement with first
respondent failed – an undertaking given by the first
respondent at the applicant’s request proved to be worthless.
Ultimately, intervention by the SAPS was necessary, but even
this did
not deter the individual respondents.

[5] During this period, the applicant
took a number of steps to protect its interests... the applicant
advised the union on several
occasions that both the union and
individual respondents were in material breach of the agreement. On
20 October 2011 the applicant
referred a dispute to the CCMA in which
it sought a determination that the union and the individual
respondents comply with the
picketing agreement. A conciliation
hearing was convened for 27 October 2011. At the hearing, the union
and the individual respondents
did not dispute the evidence of the
breaches of the agreement, but instead accused the applicant of
‘provoking’ them,
and demanded that video surveillance
cease. The CCMA was unable to resolve the dispute, and the matter was
referred to this court.

[6] On 9 November 2011 the applicant
filed a supplementary affidavit in these proceedings, with
photographs and video footage of
the damage caused by the individual
respondents. On 11 November 2011, the parties concluded an agreement
in terms of which a return
to work was agreed. On 29 November 2011,
the applicant’s attorneys wrote to the respondent’s
attorneys to enquire whether
the respondents would tender the costs
of these proceedings.

[7] The respondents’ main
complaint on the return day, it appears, is that they did not receive
the founding papers, since
the second respondent was in East London
and the respondent’s attorney not in his office (5 November was
a Saturday). On
this basis, the respondents contend that they were
not in a position to defend the proceedings, and should not be held
liable for
the costs. Secondly, the respondents contend that they are
individuals earning a relatively low income, and cannot therefore be
ordered to pay the applicant’s costs. Thirdly, the respondents
contend that the respondents’ conduct is no longer in
dispute,
and that they cannot therefore be held liable for costs. Finally, on
the return date, Mr Levin, who appeared for the respondents,
submitted that the existence of a collective bargaining relationship
between the parties militated against any order for costs.

[8] Section 162 of the LRA entitles
this court to make an order according to the requirements of the law
and fairness. This is a
broad discretion, and one that must be
exercised judicially. In my view, for the reasons that follow, none
of the submissions on
behalf of the respondent have merit, and there
is no basis, having regard to the law and fairness, why the
respondents should not
be liable for the applicant’s costs.’

[36] The Learned Judge
considered that none of the reasons advanced by the respondents had
any merit. They had been served with
the notice of motion and made
aware of the date and time the urgent application would be moved and
Motha had been advised to arrange
for other union officials to attend
court. After the rule nisi was issued copies of the rule nisi were
delivered to those members
who were assembled outside Montecasino.
Attempts to hand over copies of the order to them was thwarted and it
was not denied that
individual respondents present tore up the copies
of the order.

[37] The Learned Judge
continued and stated that:

‘The fact
that the individual respondents are workers earning a relatively low
income is of no consequence. They have not denied
participating in
the unlawful conduct alleged by the applicant, and they must bear the
consequences of their actions. The fact
that they have since the date
of the order returned to work is neither here or there. The issue is
not that there was an agreed
return to work – the issue is
whether the respondents’ conduct necessitated an application to
this court and whether
it is fair, having regard to all of the
circumstances (including the respondents’ conduct prior to the
return to work), to
order them to bear the applicant’s costs.
The existence of a continued collective bargaining relationship
between the parties
and the potential prejudice to that relationship
that any order for costs might present is similarly irrelevant in
this instance...
while the parties will necessarily have to pick up
the pieces of a relationship that has been compromised on account of
the respondents’
conduct, I fail to appreciate how the
existence of a collective bargaining relationship or its future
course militates against
any award of costs... in my view any order
for costs will have a salutary effect and serve to emphasize to the
individual respondents
that the right to engage in collective
bargaining is not a licence to engage in collective brutality and for
the union and its
officials, that responsibility for the collective
requires individual actions.’2

[38] In a similar vein to
the respondents’ contentions in Tsogo Sun’s case
above, the first and second respondents contend that there is no
basis for the applicant to seek a costs order against the
respondents
as the dispute between the parties has now been settled. The
agreement on the picket rules was signed on the 24 October
2012,
there has been no further allegations of acts of violence,
intimidation or damage to applicant’s property; the respondents
agreed to resume work on the 29 October 2012. Therefore, the matters
that the applicant complained of and brought an urgent interdict
application for are now academic and the application for costs is an
abuse of the court’s processes and wastage of time and
resources of the court and the defendants; its intention being to
cripple LEWUSA.

[39] But it is my view
that the respondents are missing Judge Van Niekerk’s
identification of the real issue in casu, namely that ‘[t]he
issue is not that there was an agreed return to work - the issue is
whether the respondents’ conduct
necessitated an application to
this court and whether it is fair, having regard to all the
circumstances (including the respondents’
conduct prior to the
return to work), to order them to bear the applicant’s costs.’

[40] In their answering
affidavit, what the respondents seem to deny is the degree of
violence during the strike. At para 155 page
192 of the answering
affidavit, Motha states: ‘It is once again denied that the
strike was as violent as made out. While
there were incidents no
major incidents took place.’ That begs the question why would
the applicant have approached this
court for minor incidents of
violence? Why would the police have called the public order police on
both the 19 and 22 November
2012 to control the situation if the
incidents were minor?

[41] I am satisfied that
the applicant was compelled by both the serious acts of violence
perpetrated by the picketing respondents
and the abject failure of
the union to control and/or stop its members from breaking the law. I
can only echo the words of Van
Niekerk J in the Tsogo Sun
case, supra, that:

‘This court
will always intervene to protect both the right to strike, and the
right to peaceful picketing. This is an integral part
of the court’s
mandate, conferred by the Constitution and the LRA. But the exercise
of the right to strike is sullied and
ultimately eclipsed when those
who purport to exercise it engage in acts of gratuitous violence in
order to achieve their ends.
When the tyranny of the mob displaces
the peaceful exercise of economic pressure as the means to the end of
the resolution of a
labour dispute, one must question whether a
strike continues to serve its purpose and thus whether it continues
to enjoy protected
status.’3

[42] In deciding whether
to make an order for the payment of costs, I have to bear in mind
that I have a discretion to be exercised
judicially and also the
injunction of section 162(1) of the LRA that such order has to be
‘...according to the requirements
of the law and fairness.’
I also have to bear in mind such other relevant considerations as
courts have enunciated in cases,
eg, the making of costs orders may
well discourage parties, particularly individual employees, from
approaching this court and
the court should thus give consideration
to avoiding such orders, especially where a genuine dispute exists
and the approach to
the court was not unreasonable. The conduct of
the parties is relevant to the making of a costs order.

[43] Taking into
consideration all the above-mentioned factors, the violent conduct of
the respondents, their repetitive defiance
of the police orders
renders their special circumstances irrelevant. The court must take
into account the interests that lie beyond
the direct interests of
the parties to the dispute.

[44] I am of the view
that this court should mark its disapproval and condemnation of the
violent behaviour of the picketing employees
and of the first
respondent’s abject failure to stop it by a punitive costs
order.

[45] Accordingly, I make
the following order:

The first and second to
further respondents are to pay the applicant’s costs of these
proceedings on a scale as between
attorney and client, jointly and
severally the one paying the other to be absolved.